Over the next two weeks the Judicial Service Commission (JSC) convenes to consider candidates for judicial appointments. For the first time since it came into operation, the JSC will interview candidates and make appointments in terms of criteria that have been published and thus made public for the first time.
On September 10 the JSC held a special sitting and resolved that principles that the body had adopted more than a decade ago, in 1998, should finally be published “in line with the JSC’s principle that the process of judicial appointments should be open and transparent to the public so as to enhance public trust in the judiciary”.
To a considerable extent, the JSC’s initial criteria follow those stipulated in section 174 of the Constitution, namely an applicant must be an appropriately qualified and a fit and proper person and his or her appointment should help to reflect the racial and gender composition of South Africa.
After that there are a series of supplementary criteria, including that the appointee must be a person of integrity, possessed of the necessary energy and motivation, competent, both technically and with the capacity to give expression to the values of the Constitution, as well as being experienced in regard to the values and needs of the community.
Furthermore, consideration is given to whether an appointee possesses the appropriate potential and to what extent there is a symbolic message given to the community at large by a particular appointment.
One can only assume that these supplementary criteria will be used to give content to the criteria expressly set out in section 174 of the Constitution.
A far more difficult problem concerns the balance to be struck between the appointment of appropriately qualified persons who are fit and proper, on the one hand, and whether, on the other, the appointment reflects the racial and gender composition of South Africa. Section 174 (2) of the Constitution provides that the need for the judiciary to “reflect broadly” the racial and gender composition of South Africa must be considered when judicial officers are appointed.
The key question is whether this trumps an evaluation of a candidate’s qualifications and as being fit and proper. A number of candidates may be appropriately qualified and fit and proper.
If they were to be ranked, the ranking order may not reflect the racial and gender composition of South Africa. Assume, for example, that seven candidates, as is the present situation, apply for three vacancies on the Supreme Court of Appeal (SCA).
Assume further that it is decided, for the purposes of being a member of the second-highest court in South Africa, that six of the judges are appropriately qualified.
Assume further a ranking, based on qualification and “fit and proper”, of a white male, a black male, a man and then a women both previously classified as coloured, and another black man. Would race and gender considerations trump this ranking so that the two black men and the woman be appointed to the exclusion of the white candidate?
Assume further that a white judge is ranked highest for giving expression to the values of the Constitution and, arguably, with regard to the values and the needs of the community, given the judge’s background and previous political activity prior to becoming a judge. To what extent would these criteria weigh with the JSC in its evaluation of these candidates?
In the final analysis, the constitutional objective must surely be to create a nonracial society, including a Bench that complies with this objective. Section 174 (2) expressly states that the need is for the judiciary to reflect broadly the racial and gender composition of South Africa. This suggests that, as critical as race and gender are to the appointment process, a decision should not be made purely in terms of representivity, so that all courts reflect the racial and gender composition of South Africa to the closest decimal point.
Criticism has been raised concerning the adherence to nonracialism as well as the commitment to values. In some cases distinguished progressives have lost out to applicants who are not only not as qualified as those ultimately appointed, but also whose previous records do not reflect as clear a commitment to the implementation of the constitutional values of dignity, equality and freedom, particularly during the struggle against apartheid.
Given the numerous controversies surrounding some appointments, the JSC’s commitment to publishing criteria and promoting transparency is to be welcomed. But the publication of criteria is the first step.
Far more significant will be for the public to gain knowledge of the weight to be attached to the various criteria and how they have been applied in the appointments now to be made by the JSC. It is in this way that the legitimacy of the judiciary will truly be enhanced.